[U. S. COURT OF
APPEALS (SIXTH CIRCUIT) HOLDS THAT UNIVERSITY VIOLATED STUDENTS' FIRST AMENDMENT
RIGHTS WHEN IT BANNED DISTRIBUTION OF COLLEGE YEARBOOK HAVING A PURPLE COVER
INSTEAD OF THE SCHOOL COLORS GREEN AND GOLD]

Plaintiffs-Appellants Charles Kincaid and Capri Coffer appeal
the district court's grant of summary judgment upholding Defendants-Appellees'
confiscation and ban on distribution of a college yearbook edited by Coffer.
Upon en banc review, we determine that the KSU officials violated the First
Amendment rights of Kincaid and Coffer. Accordingly, we REVERSE
the order of the district court and REMAND the case with
instructions to enter judgment in favor of Kincaid and Coffer and to determine
the relief to which they are entitled. See, e.g., Leila Hosp. and Health
Ctr. v. Bowen, 873 F.2d 132, 134 (6th Cir.1989).

I. BACKGROUND

A. Factual
Background

At the times
relevant to this case, both Kincaid and Coffer were registered students at
Kentucky State University ("KSU"), a public, state-funded university.
Betty Gibson was KSU's Vice President for Student Affairs. KSU funded production
and distribution of The Thorobred, the student yearbook.(1)
KSU students composed and produced The Thorobred, with limited advice
from the university's student publications advisor, as discussed infra.

Coffer served as the
editor of the yearbook during the 1993-94 academic year. Although a
student-photographer and at least one other student assisted her at one point,
Coffer organized and put together the yearbook herself after her staff members
lost interest in the project. Coffer endeavored to "do something
different" with the yearbook in order to "bring Kentucky State
University into the nineties"; she also sought to "present a yearbook
to the student population that was what they [had] never seen before." To
these ends, Coffer created a purple cover using a material known as "rain
shower foil stamp," and, for the first time, gave the yearbook a theme. The
theme, "destination unknown," described the atmosphere of
"uncertainty" that Coffer believed characterized the time; Coffer
found evidence of this uncertainty in students wondering "where are we
going in our lives," in high unemployment rates, and in a current
controversy regarding whether KSU was going to become a community college.
Coffer included pictures in the yearbook depicting events at KSU and in its
surrounding community, and political and current events in the nation and world
at large. The yearbook covered both the 1992-93 and 1993-94 academic years
because the students working on the 1992-93 yearbook had fallen behind schedule.
Although the yearbook was originally projected to contain 224 pages, Coffer
testified that the final product contained only 128 pages, because she did not
have enough pictures to fill 224 pages and because the university administration
took no interest in the publication. Coffer completed the yearbook several
thousand dollars under budget, and sent the yearbook to the printer in May or
June of 1994.

When the yearbook
came back from the printer in November 1994, Gibson objected to several aspects
of it, finding the publication to be of poor quality and
"inappropriate." In particular, Gibson objected to the yearbook's
purple cover (KSU's school colors are green and gold), its "destination
unknown" theme, the lack of captions under many of the photos, and the
inclusion of current events ostensibly unrelated to KSU. After consulting with
KSU President Mary Smith and other unnamed university officials, Gibson and
Smith decided to confiscate the yearbooks and to withhold them from the KSU
community. Gibson contacted Leslie Thomas, KSU's Director of Student Life, and
instructed her to secure the yearbooks so that they would not be distributed.
Thomas contacted KSU's director for service management, who ensured that the
yearbooks were secured. Although Gibson's intention was "perhaps [to]
discard [the yearbooks]," Gibson's counsel indicated at oral argument that
the yearbooks remain hidden away on KSU's campus.

B. Procedural
Background

In November 1995,
Kincaid and Coffer sued Gibson, Smith, and individual members of the KSU Board
of Regents under 42 U.S.C. [sec.] 1983, alleging that the university's
confiscation of and failure to distribute the 1992-94 KSU student yearbook
violated their rights under the First and Fourteenth Amendments to the United
States Constitution.(2) Kincaid and Coffer sought
damages and injunctive relief.

Both parties moved
for summary judgment on the yearbook claim. The district court applied a forum
analysis to the students' First Amendment claim, and found that the KSU yearbook
was a nonpublic forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The district court
reasoned that Kincaid and Coffer had "put forth no evidence that The
Thorobred was intended to reach or communicate with anybody but KSU
students," and held that "the yearbook was not intended to be a
journal of expression and communication in a public forum sense, but instead was
intended to be a journal of the 'goings on' in [a] particular year at KSU."
Having found that the yearbook was not a public forum, the court held that the
university officials' refusal to distribute the yearbook "on the grounds
that the yearbook was not of proper quality and did not represent the school a[s]
it should," was reasonable. Accordingly, the court granted the KSU
officials' motion for summary judgment and denied the students' motion. Both in
finding that the KSU yearbook was a nonpublic forum and in finding that the KSU
officials' actions were reasonable, the district court relied in part upon Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592
(1988).(3)

A divided panel of
this court affirmed the district court's opinion. See Kincaid v. Gibson,
191 F.3d 719. We granted en banc review to determine whether the panel and the
district court erred in applying Hazelwood--a case that deals
exclusively with the First Amendment rights of students in a high school setting(4)--to
the university setting, and to examine whether the district court erred in
finding that the student-plaintiffs failed as a matter of law to submit
sufficient evidence to prove that the KSU yearbook is a limited public forum
rather than a nonpublic forum.(5) For the reasons
that follow, we hold that the KSU yearbook is a limited public forum, and that
Kincaid and Coffer have presented sufficient evidence that the university
officials violated their First Amendment rights to prevail as a matter of law. See
Fed.R.Civ.P. 56(c).

II. STANDARD OF
REVIEW

We review the
district court's grant of summary judgment de novo. See Greer v. United
States, 207 F.3d 322, 326 (6th Cir.2000). Summary judgment is
appropriate when "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no dispute
regarding the material facts of this case; indeed, each party insists that the
facts as presented to the district court require summary judgment in his or her
favor. We recognize that "[t]he fact that both parties make motions for
summary judgment, and each contends in support of his respective motion that no
genuine issue of fact exists, does not require the Court to rule that no fact
issue exists." Begnaud v. White, 170 F.2d 323, 327 (6th
Cir.1948); accord Greer, 207 F.3d at 326. Nonetheless, "'cross
motions for summary judgment do authorize the court to assume that there is no
evidence which needs to be considered other than that which has been filed by
the parties.'" Greer, 207 F.3d at 326 (citing Harrison Western
Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981). There
is a substantial amount of testimony and documentary evidence in the record
before us. Thus, we agree with the parties that the facts as developed in this
case are sufficient to decide the case in accordance with clearly established
First Amendment law, and we find no material facts in dispute that prevent the
district court from granting summary judgment in favor of Kincaid and Coffer.

III. DISCUSSION

The issue before us
is whether the university officials violated the First Amendment rights of
Kincaid and Coffer by confiscating and failing to distribute the KSU student
yearbook. For the reasons that follow, we apply a forum analysis to the question
and hold that the KSU yearbook constitutes a limited (or "designated")
public forum. Accordingly, we analyze the actions taken by the university
officials with respect to the yearbook under strict scrutiny, and conclude that
the officials' confiscation of the yearbooks violated Kincaid's and Coffer's
First Amendment rights.

A.
Application of Public Forum Doctrine

We begin with the
fundamental principle that there can be "no doubt that the First Amendment
rights of speech and association extend to the campuses of state
universities." Widmar v. Vincent, 454 U.S. 263, 268-69, 102 S.Ct.
269, 70 L.Ed.2d 440 (1981). KSU is a state-funded, public university. See
Ky.Rev.Stat. Ann. [sec.] 164.290(2). As such, the actions KSU officials take in
their official capacities constitute state actions for purposes of First
Amendment analysis. Further, the funds and materials that KSU allocates toward
production of The Thorobred constitute state property. See United
Food & Commerical Workers Union (UFCWU), Local 1099 v. Southwest Ohio
Regional Transit Auth., 163 F.3d 341, 349 (6th Cir.1998). By
confiscating the yearbooks at issue in this case, the KSU officials have
restricted access to state property used for expressive purposes. "The
Supreme Court has adopted a forum analysis for use in determining whether a
state-imposed restriction on access to public property is constitutionally
permissible." Id. Accordingly, we find that forum analysis is
appropriate in this case.

Although Kincaid and
Coffer argue their case under the forum doctrine, they argue in the alternative
that forum analysis does not apply to the KSU yearbooks because "forum
analysis is only appropriate when the issue concerns the access sought by the
proposed speaker," and that access is not at issue in this case.
Appellants' Supp. Br. at 11-12. We disagree. It is true that "a speaker
must seek access to public property or to private property dedicated to public
use to evoke First Amendment concerns." See Cornelius v. NAACP Legal
Defense and Educ. Fund, Inc., 473 U.S. 788, 801, 105 S.Ct. 3439, 87 L.Ed.2d
567 (1985). Although neither Kincaid nor Coffer seeks to add words or
photographs to the yearbook at this point, university officials have cut off KSU
students' access to read and possess it. Further, the Supreme Court has often
applied a forum analysis to expressive activity within educational settings. See,
e.g., Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S.
819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (applying forum analysis to
university student activities fund); Perry, 460 U.S. 37, 103 S.Ct. 948,
74 L.Ed.2d 794 (applying forum analysis to school district's internal mail
system); Hazelwood, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592
(applying forum analysis to high school newspaper); Widmar, 454 U.S.
263, 102 S.Ct. 269, 70 L.Ed.2d 440 (applying forum analysis to university
meeting fora). Thus, we find that forum analysis is the appropriate framework
under which to proceed in this case.(6)

B. Type of
Forum

There is no real
dispute in this case that the forum in question is The Thorobred
itself. The parties dispute strenuously, however, the appropriate
characterization of The Thorobred under forum analysis. Kincaid and
Coffer contend that the yearbook is a limited public forum, subject only to
reasonable time, place, and manner regulations, and to only those content-based
regulations that are narrowly crafted to serve a compelling state interest. See
Perry, 460 U.S. at 46, 103 S.Ct. 948. The KSU officials respond that the
yearbook is a nonpublic forum, subject to all reasonable regulations that
preserve the yearbook's purpose. See id.

The Supreme Court
has recognized three types of fora. The first type is a traditional public
forum. A traditional public forum is a place "which by long tradition or by
government fiat ha[s] been devoted to assembly and debate," such as a
street or park. See id. at 45, 103 S.Ct. 948. In traditional public
fora, "the rights of the state to limit expressive activity are sharply
circumscribed": the government may enforce content-based restrictions only
if they are narrowly drawn to serve a compelling interest, and may enforce
content-neutral time, place, and manner regulations only if they are
"narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication." Id. The second
type of forum has been alternatively described as a "limited public
forum," see Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, and as a
"designated public forum," see Arkansas Educ. Television Comm'n v.
Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). The
government may open a limited public forum "for use by the public at large
for assembly and speech, for use by certain speakers, or for the discussion of
certain subjects." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439.
Although the government need not retain the open nature of a limited public
forum, "as long as it does so it is bound by the same standards as apply in
a traditional public forum." Perry, 460 U.S. at 46, 103 S.Ct. 948.
The third and final type of forum is a nonpublic forum. The government may
control access to a nonpublic forum "based on subject matter and speaker
identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral." Cornelius,
473 U.S. at 806, 105 S.Ct. 3439; see also Perry, 460 U.S. at 46, 103
S.Ct. 948.

The parties agree
that The Thorobred is not a traditional public forum. To determine
whether the yearbook is a limited public forum, the touchstone of our analysis
is whether the government intended to open the forum at issue. See Cornelius,
473 U.S. at 802, 105 S.Ct. 3439; accord Forbes, 523 U.S. at 677, 118
S.Ct. 1633; Hazelwood, 484 U.S. at 267, 108 S.Ct. 562. To determine
whether the government intended to create a limited public forum, we look to the
government's policy and practice with respect to the forum, as well as to the
nature of the property at issue and its "compatibility with expressive
activity." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Further,
the context within which the forum is found is relevant to determining whether
the government has created a limited public forum. See, e.g., Forbes,
523 U.S. at 672-73, 118 S.Ct. 1633 (stating that "the public forum doctrine
should not be extended in a mechanical way to the very different context of
public television broadcasting."); Cornelius, 473 U.S. at 802, 105
S.Ct. 3439 (stating that Court will not "ignore the special nature and
function of the federal workplace in evaluating the limits that may be imposed
on an organization's right to participate" in fundraising forum).
Evaluating these factors--KSU's policy and practice, the nature of The
Thorobred and its compatibility with expressive activity, and the context
in which the yearbook is found--we find clear evidence of KSU's intent to make
the yearbook a limited public forum.

1. Policy

KSU's written policy
toward The Thorobred is found in a section of the student handbook
entitled "Student Publications."(7) In
addition to stating KSU's policy toward the yearbook, the handbook describes the
university's structure for oversight of the publication. The yearbook (along
with the student newspaper) is "under the management of the Student
Publications Board." The Student Publications Board ("SPB"), in
turn, is composed of students, faculty members, and university officials.(8)
Both the university's written policy and the structure it created to oversee the
yearbook evidence KSU's intention that the yearbook serve as a limited public
forum.

First and foremost,
the policy places editorial control of the yearbook in the hands of a student
editor or editors. Although the policy provides for the establishment of minimum
qualifications for student editors,(9) once a
student is appointed editor, editorial control of the yearbook's content belongs
to her. This is made clear by the policy's description of the Student
Publications Advisor, a university employee. The policy directs that the SPB
"shall require the use of an experienced advisor," but limits the
advisor's role to "assur[ing] that the . . . yearbook is not overwhelmed by
ineptitude and inexperience." Indeed, the policy expressly limits the types
of changes that the advisor may make to the yearbook:

In
order to meet the responsible standards of journalism, an advisor may require
changes in the form of materials submitted by students, but such changes
must deal only with the form or the time and manner of expressions rather than
alteration of content.

See App. I (emphasis added). This language is revealing: not only does
it direct the university's chosen advisor to refrain from editing the content of
the yearbook, it also tracks the Supreme Court's description of the limitations
on government regulation of expressive activity in a limited public forum. See
Perry, 460 U.S. at 46, 103 S.Ct. 948 ("Reasonable time, place and
manner regulations are permissible, and a content-based prohibition must be
narrowly-drawn to effectuate a compelling state interest."). KSU's intent
to limit its own oversight to time, place, and manner aspects of the yearbook is
also seen in the policy's treatment of the SPB. The policy declares that one of
the duties of the SBP is to "[a]pprove the written publications policy of
each student publication, including such items as purpose, size, quantity
controls, and time, place and manner of distribution."(10)
This language reiterates the university's intent to limit its oversight of the
yearbook to general and administrative matters, and to cede authority over the
yearbook's content to the students who published it. Finally, the publications
policy opens with language that indicates that the expressive activity contained
in student publications is to be largely unrestrained: "The Board of
Regents respects the integrity of student publications and the press, and the
rights to exist in an atmosphere of free and responsible discussion and of
intellectual exploration." Such self-imposed restraint is strong evidence
of KSU's intent to create a limited public forum, rather than to reserve to
itself the right to edit or determine The Thorobred's content.

The KSU officials
argue that the handbook policy shows the university's intent to retain, rather
than relinquish, control over the yearbook's content. They point in particular
to the fact that the policy requires a disclaimer to be placed on the student
newspaper--but not on the yearbook--as evidence of the university's intent to
retain control over the content of the yearbook.(11)
Such reasoning relies upon a negative inference: in other words, the fact that
the policy fails to require a disclaimer to be placed upon the yearbook
purportedly implies that the yearbook is "an 'official' organ of
the University," because the university requires a disclaimer on the
newspaper, and the newspaper is not such an official organ. This is
hardly persuasive. Were we to follow the logic behind this conclusion, we must
also conclude that the university has forgone all standards of quality control
with relation to the yearbook. After all, the publications policy states minimum
standards of quality control for the newspaper, but none for the yearbook.(12)
Yet to concede that would require the university officials to concede their
entire argument--Gibson argues on appeal that the basis for confiscating the
yearbooks is their allegedly "poor quality." Rather than engage in
such inferential gymnastics, we read the university's policy in a
straightforward manner. For the reasons discussed, supra, KSU's policy
leaves room for only one conclusion: that the university intended to open the
yearbook as a limited public forum.

2. Practice

In addition to
examining KSU's stated policy, we must examine the university's actual practice
to determine whether it truly intended to create a limited public forum in The
Thorobred. Indeed, we have noted that "'actual practice speaks louder
than words'" in determining whether the government intended to create a
limited public forum. See UFCWU, 163 F.3d at 353 (quoting Grace
Bible Fellowship, Inc. v. Maine School Admin. Dist. No. 5, 941 F.2d 45, 47
(1st Cir.1991)). The record before us contains substantial evidence
from varied sources that the SPB followed its stated "hands off"
policy in actual practice. Coffer testified without contradiction that Vice
President Gibson--who Coffer described as a "friend[ ]" with whom she
was "on excellent terms"--"never expressed any concern about what
the content might be in the yearbook" prior to its publication, but rather
limited her concerns to the yearbook's release date. Nor did the SPB exercise
oversight of the yearbook's content. Laura Jo Cullen, the university's
publications advisor to the yearbook and an ex officio member of the SPB,
testified that the SPB limited its oversight of the yearbook to issues such as
advertising rates and selection of editors, and that in the time during which
she had been associated with the yearbook,(13)
the Board had never attempted to control the content of the yearbook. Leslie
Thomas, KSU's Director of Student Life and another member of the SPB, testified
that the SPB exercised minimal oversight of the yearbook in actual practice:
"We just always dealt with the newspaper so I guess that was the major
focus." Thomas also testified that it was the student editor rather than
the SPB who determined the content of the yearbook. Thus, the record before us
is clear that, in actual practice, student editors--not KSU officials, not the
student publications advisor, and not the SPB--determined the content of KSU's
student yearbook.

3. Nature of
the Property and Compatibility with Expressive Activity

In addition to the
university's policy and practice, an examination of the nature of the forum at
issue and its compatibility with expressive activity further indicates that KSU
intended to open The Thorobred to the student editors as a limited
public forum. The KSU yearbook is a student publication that, by its very
nature, exists for the purpose of expressive activity. There can be no serious
argument about the fact that, in its most basic form, the yearbook serves as a
forum in which student editors present pictures, captions, and other written
material, and that these materials constitute expression for purposes of the
First Amendment. As a creative publication, the yearbook is easily distinguished
from other government fora whose natures are not so compatible with free
expression. See, e.g., Cornelius, 473 U.S. at 805, 105 S.Ct. 3439
(finding that nature of government property at issue indicates that fundraising
forum in federal workplace is nonpublic forum); Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 134, 97 S.Ct. 2532, 53 L.Ed.2d
629 (1977) (finding that prison is a nonpublic forum); Greer v. Spock,
424 U.S. 828, 838, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (holding that military
installation is not a public forum). Nor is The Thorobred a
closely-monitored classroom activity in which an instructor assigns student
editors a grade, or in which a university official edits content. See
Hazelwood, 484 U.S. at 268-69, 108 S.Ct. 562. The student handbook itself
describes the yearbook as a "student publication" that should
"exist in an atmosphere of free and responsible discussion and of
intellectual exploration."(14) It is
difficult to conceive of a forum whose nature is more compatible with
expression.

4. Context

We are also
persuaded that the context within which this case arises indicates that The
Thorobred constitutes a limited public forum. The university is a special
place for purposes of First Amendment jurisprudence. The danger of
"chilling . . . individual thought and expression . . . is especially real
in the University setting, where the State acts against a background and
tradition of thought and experiment that is at the center of our intellectual
and philosophic tradition." Rosenberger, 515 U.S. at 835-36, 115
S.Ct. 2510 (citing cases); see also Widmar, 454 U.S. at 267 n. 5, 102
S.Ct. 269 ("This Court has recognized that the campus of a public
university, at least for its students, possesses many of the characteristics of
a public forum."). The university environment is the quintessential
"marketplace of ideas," which merits full, or indeed heightened, First
Amendment protection. See Healy v. James, 408 U.S. 169, 180, 92 S.Ct.
2338, 33 L.Ed.2d 266 (1972) (stating that the "vigilant protection of
constitutional freedoms is nowhere more vital than in the community of American
schools" (quotation marks and citation omitted)). In addition to the nature
of the university setting, we find it relevant that the editors of The
Thorobred and its readers are likely to be young adults--Kincaid himself
was thirty-seven at the time of his March 1997 deposition. Thus, there can be no
justification for suppressing the yearbook on the grounds that it might be
"unsuitable for immature audiences." Compare Hazelwood, 484
U.S. at 271, 108 S.Ct. 562 (footnote omitted), with Widmar, 454 U.S. at
274 n. 14, 102 S.Ct. 269 ("University students are, of course, young
adults. They are less impressionable than younger students . . . .").
Accordingly, we find that the fact that the forum at issue arises in the
university context mitigates in favor of finding that the yearbook is a limited
public forum.

5. KSU
Officials' Arguments

The KSU officials
dispute this substantial evidence of the university's intent to create a limited
public forum in the student yearbook. They argue that a limited public forum
cannot exist unless the government has opened the forum at issue for
"indiscriminate use by the general public." The district court agreed,
concluding that the yearbook was a nonpublic forum by reasoning that Kincaid and
Coffer had "put forth no evidence that The Thorobred was intended
to reach or communicate with anybody but KSU students." This reasoning
badly distorts a basic tenet of public forum law. It is true that one
of the ways in which the government may create or designate a public forum is by
opening the forum "for indiscriminate use by the general public." See
Perry, 460 U.S. at 47, 103 S.Ct. 948. But the government may create a
limited public forum in other ways as well: "a public forum may be created
by government designation of a place or channel of communication for use by the
public at large for assembly and speech, for use by certain speakers, or
for the discussion of certain subjects." Cornelius, 473 U.S. at
802, 105 S.Ct. 3439 (emphasis added); see also Hazelwood, 484 U.S. at
267, 108 S.Ct. 562 ("[High] school facilities may be deemed to be public
forums only if school authorities have 'by policy or by practice' opened the
facilities 'for indiscriminate use by the general public,' or by some
segment of the public, such as student organizations." (citations
omitted and emphasis added)). Thus, the proposition put forth by the university
officials and relied upon by the district court--i.e., that the
government must open a forum for indiscriminate use by the general public in
order to create a designated public forum--is erroneous.

The KSU officials
further argue that only select individuals had access to The Thorobred,
and that "[a] designated public forum is not created when the government
allows selective access for individual speakers rather than general access for a
class of speakers." See Forbes, 523 U.S. at 679, 118 S.Ct. 1633.
In an attempt to bring The Thorobred under this rule, the officials
point out that KSU limited access to the yearbook to the yearbook staff, which,
in this case, was comprised of only Coffer. The officials note additionally that
KSU's student handbook imposes certain minimum requirements--such as a minimum
grade point average or successful completion of a journalism course--upon
members of the yearbook's board of editors, and that there is no evidence that
the student body as a whole may contribute to the yearbook. The KSU officials
again misinterpret First Amendment forum law. There is a "distinction
between 'general access,' which indicates that the property is a designated
public forum, and 'selective access,' which indicates that the property is a
nonpublic forum." Forbes, 523 U.S. at 679, 118 S.Ct. 1633
(citations omitted). General access is defined as the situation in which the
government "makes its property generally available to a certain class
of speakers." Id. (emphasis added). Selective access occurs
when the government "does no more than reserve eligibility for access to
the forum to a particular class of speakers, whose members must then, as
individuals, 'obtain permission' to use it." Id. (emphasis added
and citation omitted). In the instant case, KSU's policy and practice indicate
that the university intended to designate the yearbook as a public forum for
those students who became editors of the yearbook--in other words, the student
editors composed the "class of speakers" for which the university
designated the yearbook as a limited public forum. These editors were under no
obligation to "obtain permission" each time they sought to access the
yearbook--indeed, the policy and practice of the university was to give the
student editors exclusive control over the content of The Thorobred.
Thus, the student editors had "general access" to the yearbook. See
Forbes, 523 U.S. at 679, 118 S.Ct. 1633. This is consistent with our
finding that the yearbook constitutes a limited public forum for that particular
class.(15)

In sum, our review
of KSU's policy and practice with regard to The Thorobred, the nature
of the yearbook and its compatibility with expressive activity, and the
university context in which the yearbook is created and distributed, all provide
strong evidence of the university's intent to designate the yearbook as a
limited public forum. Accordingly, we must determine whether the university
officials' actions with respect to the yearbook were constitutional.

C.
Constitutionality of University Officials' Actions

As discussed, supra,
the government may impose only reasonable time, place, and manner regulations,
and content-based regulations that are narrowly drawn to effectuate a compelling
state interest, on expressive activity in a limited public forum. See Perry,
460 U.S. at 46, 103 S.Ct. 948. In addition, as with all manner of fora, the
government may not suppress expression on the basis that state officials oppose
a speaker's view. See id. For the following reasons, we hold that the
actions taken by the KSU officials ran afoul of these restrictions on government
action.

Upon their return
from the printer, the 1992-94 yearbooks were delivered to the office of Laura
Cullen, the student publications advisor. Before they could be distributed to
Kincaid and other KSU students, Gibson ordered Leslie Thomas to have them
secured; Thomas complied, and, without any notification or explanation to
Cullen, the yearbooks were spirited away. To this day--nearly six years after
the yearbooks returned from the printer--the university refuses to distribute
them. This is not a reasonable time, place, or manner regulation of expressive
activity. See Perry, 460 U.S. at 46, 103 S.Ct. 948; see also Papish
v. Board of Curators of the Univ. of Missouri, 410 U.S. 667, 670, 93 S.Ct.
1197, 35 L.Ed.2d 618 (1973) (holding that university's expulsion of graduate
student for distributing on campus a newspaper containing indecent speech
violated First Amendment because she "was expelled because of the
disapproved content of the newspaper rather than the time, place, or
manner of its distribution." (italics in original; footnote omitted). Nor
is it a narrowly crafted regulation designed to preserve a compelling state
interest. See Perry, 460 U.S. at 46, 103 S.Ct. 948. Rather, wholesale
confiscation of printed materials which the state feels reflect poorly on its
institutions is as broadly sweeping a regulation as the state might muster.
Further, the university officials' action leaves open no alternative grounds for
similar expressive activity. See id. at 45, 103 S.Ct. 948. The record
contains no other student forum for recording words and pictures to reflect the
experience of KSU students during the 1992 through 1994 school years. Indeed,
the likelihood of the existence of any such alternative forum at this late date,
when virtually all of the students who were at KSU in the early 1990s will have
surely moved on, is extraordinarily slim. Accordingly, the KSU officials'
confiscation of the yearbooks violates the First Amendment, and the university
has no constitutionally valid reason to withhold distribution of the 1992-94 Thorobred
from KSU students from that era.

The KSU officials
argue that withholding the yearbooks is excusable because they were regulating
the style and form of the yearbooks rather than their content. At oral argument,
counsel for the officials argued that the record contains no evidence
that the officials withheld distribution of the yearbooks based on content, or
that they altered the content of the yearbooks. This argument is simply not
credible. First, the record makes clear that Gibson sought to regulate the
content of the 1992-94 yearbook: in addition to complaining about the yearbook's
color, lack of captions, and overall quality, Gibson withheld the yearbooks
because she found the yearbook theme of "destination unknown"
inappropriate. Gibson also disapproved of the inclusion of pictures of current
events, and testified that "[t]here were a lot of pictures in the back of
the book that . . . to me, looked like a Life magazine." Gibson
further stated that the inclusion of pictures of current events "was not
exactly what I thought it should have been, and it wasn't what other people who
viewed it thought it should have been." And after the yearbooks came back
from the printer, Gibson complained to Cullen that "[s]everal persons have
received the book, and are thoroughly disappointed at the quality and
content." Thus, it is quite clear that Gibson attempted to regulate the
content of The Thorobred once it was printed.

The officials'
argument also fails because they have, in effect, altered The Thorobred.
Confiscation ranks with forced government speech as amongst the purest forms of
content alteration. There is little if any difference between hiding from public
view the words and pictures students use to portray their college experience,
and forcing students to publish a state-sponsored script. In either case, the
government alters student expression by obliterating it. We will not sanction a
reading of the First Amendment that permits government officials to censor
expression in a limited public forum in order to coerce speech that pleases the
government. The KSU officials present no compelling reason to nullify Coffer's
expression or to shield it from Kincaid's view and, accordingly, the officials'
actions violate the Constitution. See Perry, 460 U.S. at 46, 103 S.Ct.
948.

Even were we to
assume, as the KSU officials argue, that the yearbook was a nonpublic forum,
confiscation of the yearbook would still violate Kincaid's and Coffer's free
speech rights. Although the government may act to preserve a nonpublic forum for
its intended purposes, its regulation of speech must nonetheless be reasonable,
and it must not attempt to suppress expression based on the speaker's viewpoint.
See Perry, 460 U.S. at 46, 103 S.Ct. 948. The actions taken by the KSU
officials fail under even this relaxed standard.

In arguing that
their confiscation of the yearbook was reasonable to preserve the forum's
purpose, see id., the officials adopt a portion of Coffer's testimony
as a statement of the yearbook's purpose: "It's something that the
university provides as a record for that year, a pictorial record for that
year."(16) The officials then argue that
because the yearbook was only 128 pages--about half its intended length--and
contained pictures that lacked captions, it failed to fulfill its purpose.
Because the yearbook failed to fulfill its intended purpose, the argument goes,
the university's confiscation of the yearbooks was reasonable. The university
officials acknowledge, however, that Coffer explained elsewhere in her testimony
that the yearbook was intended to be "a collection of pictures that
depicted what went on at Kentucky State University, around the community that
Kentucky State University set in, the state and the world." There is no
dispute that the yearbook included pictures of a wide range of individuals and
events. Indeed, one of Gibson's main gripes with the yearbook was that it
included pictures of current events and celebrities, and "[n]umerous
pictures of Ross Perot, Bill Clinton, the Pope, and lots of people."(17)
Thus, the yearbook appears to have fulfilled the purpose expressed by its
editor.

More important, the
KSU officials' actions were not reasonable because they were arbitrary and
conflicted with the university's own stated policy. The university's
publications policy states that "the Thorobred yearbook shall be under the
management of the Student Publications Board." Yet Thomas testified that
neither Gibson nor any other KSU administrators discussed with the SPB the
drastic act of confiscating the yearbooks. Further, the university's policy gave
to Cullen the power to "require changes in the form of materials submitted
by students [that] . . . deal . . . with the form or the time and manner of
expressions." Yet, the KSU officials never even consulted Cullen, the
student publications advisor, before they seized the yearbooks. In fact, Coffer
testified that Cullen had helped her come up with the yearbook's apparently
contentious theme and pick out its allegedly scandalous cover. Finally, the
university released the subsequent (i.e., 1994-95) yearbook, despite
the fact that it was, in Gibson's own estimation, only "a tad better than
the previous one," i.e., the yearbook at issue in this case.(18)
These facts show without doubt that the university's confiscation of the
yearbooks was anything but reasonable: rather, it was a rash, arbitrary act,
wholly out of proportion to the situation it was allegedly intended to address.

We note that KSU's
suppression of the yearbook smacks of viewpoint discrimination as well. The
university officials based their confiscation of the yearbook in part upon the
particular theme chosen by Coffer, "destination unknown." Coffer
characterized that theme, which she described in the yearbook itself, as
"my opinion as a student regarding the . . . overall student
population." Coffer's choice of theme is a classic illustration of what we
mean when we refer to a speaker's "viewpoint." The university
officials also based their confiscation of the yearbooks on the fact that the
some of its pictures captured particular, well-known individuals whom they
deemed to be out of place in a student yearbook. Kincaid summarized the basic
premise of First Amendment viewpoint jurisprudence when he testified, "[a]
picture that may be relevant to me may be something that would be garbage to
you." We might add that in a traditional, limited, or nonpublic forum,
state officials may not expunge even "garbage" if it represents a
speaker's viewpoint. See Perry, 460 U.S. at 46, 103 S.Ct. 948. Finally,
the yearbook contained written segments which Coffer described as stating her
opinions on various matters. Because the government may not regulate even a
nonpublic forum based upon the speaker's viewpoint, see id., and
because an editor's choice of theme, selection of particular pictures, and
expression of opinions are clear examples of the editor's viewpoint, the KSU
officials' actions violated the First Amendment under a nonpublic forum analysis
as well as a limited public forum analysis. See Rosenberger, 515 U.S.
at 829, 115 S.Ct. 2510 ("The government must abstain from regulating speech
when the specific motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.").

IV. CONCLUSION

The district court
erred by granting summary judgment to the university officials and denying it to
Kincaid and Coffer because the record clearly shows KSU's intent to designate The
Thorobred as a limited public forum. Specifically, the district court erred
in concluding that the yearbook was a nonpublic forum on the basis that Kincaid
and Coffer "put forth no evidence that The Thorobred was intended
to reach or communicate with anybody but KSU students." This reasoning
simply misapplies well-established public forum law. The district court further
erred in concluding that "the yearbook was not intended to be a journal of
expression and communication in a public forum sense, but instead to be a
journal of the 'goings on' in [a] particular year at KSU." Given KSU's
stated policy and practice with regard to the yearbook, the nature of the
yearbook and its compatibility with expressive activity, and the university
context in which the yearbook is published, there can be no question that The
Thorobred is a "journal of expression and communication in the public
forum sense." The university's confiscation of this journal of expression
was arbitrary and unreasonable. As such, it violated Kincaid's and Coffer's
First Amendment rights.

In light of the
clearly established contours of the public forum doctrine and the substantially
developed factual record in this case, the district court should have denied the
KSU officials' motion for summary judgment and granted Kincaid's and Coffer's
summary judgment motion. Accordingly, we REVERSE the judgment
of the district court and REMAND the case with instructions to
enter judgment in favor of Kincaid and Coffer, and to determine the relief to
which they are entitled.

* * * * *

[Attachment (Appendix I) and concurring
and dissenting opinions are omitted.]

__________________

1. Both Kincaid and
Coffer assert that they, along with all other KSU students, paid a mandatory
eighty-dollar student activity fee at the beginning of the 1993-94 school year
which covered the costs of supplying each KSU student with a copy of The
Thorobred. In her deposition, Gibson stated that the student activity fee
did not fund the yearbook, but rather that the yearbook was funded by general
revenue. This difference of opinion is not materially related to the dispute at
hand. Because the parties agree that the yearbook was funded by the university,
and because the university is a state-funded institution, Kincaid and Coffer
have First Amendment rights under a forum analysis as detailed infra.

2. Kincaid and
Coffer raised several other claims, which are not before us on appeal. See
Kincaid v. Gibson, 191 F.3d 719, 724-25 (6th Cir.1999), vacated
by 197 F.3d 828 (6th Cir.1999).

3. In Hazelwood,
the Court held that a newspaper published by a public high school journalism
class was a nonpublic forum, 484 U.S. at 270, 108 S.Ct. 562, and that school
officials' regulation of the content of the paper was reasonably related to
legitimate pedagogical concerns, id. at 273, 108 S.Ct. 562.

4. See Hazelwood,
484 U.S. at 273 n. 7, 108 S.Ct. 562 ("We need not now decide whether the
same degree of deference is appropriate with respect to school-sponsored
expressive activities at the college and university level."); see also
Board of Regents of the Univ. of Wisconsin Sys. v. Southworth, 529 U.S.
217, 120 S.Ct. 1346, 1359 n. 4, 146 L.Ed.2d 193 (2000) (Souter, J., concurring
in the judgment) ("[our] cases dealing with the right of teaching
institutions to limit expressive freedom of students have been confined to high
schools, whose students and their school's relation to them are different and at
least arguably distinguishable from their counterparts in college
education." (citations omitted)).

5. The parties
essentially agree that Hazelwood applies only marginally to this case.
Kincaid and Coffer argue that Hazelwood is factually inapposite to the
case at hand; the KSU officials argue that the district court relied upon Hazelwood
only for guidance in applying forum analysis to student publications. Because we
find that a forum analysis requires that the yearbook be analyzed as a limited
public forum--rather than a nonpublic forum--we agree with the parties that Hazelwood
has little application to this case. Cf. Student Government Ass'n v. Board
of Trustees of the Univ. of Massachusetts, 868 F.2d 473, 480 n. 6 (1st
Cir.1989) (stating that Hazelwood "is not applicable to college
newspapers.").

6. Our decision to
apply the forum doctrine to the student yearbook at issue in this case has no
bearing on the question of whether and the extent to which a public university
may alter the content of a student newspaper. See, e.g., Stanley v. Magrath,
719 F.2d 279 (8th Cir.1983) (finding violation of students' First
Amendment rights to free expression where university cut student newspaper's
funding at least in part on the basis that it disapproved of paper's content); Schiff
v. Williams, 519 F.2d 257, 260 (5th Cir.1975) (holding that
"the right of free speech embodied in the publication of a college student
newspaper cannot be controlled except under special circumstances"); Joyner
v. Whiting, 477 F.2d 456, 460 (4th Cir.1973) (stating that
"if a college has a student newspaper, its publication cannot be suppressed
because college officials dislike its editorial comment"); Antonelli v.
Hammond, 308 F.Supp. 1329 (D.Mass.1970) (holding that university
requirement that all material to be published in student newspaper be previewed
by university administrators violated students' rights to free expression).
Likewise, we note that a college yearbook with features akin to a university
student newspaper might be analyzed under a framework other than the forum
framework.

7. The Student
Publications policy, which is reproduced in its entirety at Appendix I of this
opinion, also covers the Thorobred News, KSU's student newspaper. The
newspaper is not at issue before the en banc panel.

The
Student Publications Board membership shall consist of two members of the
faculty, one of whom shall serve as chairperson; the editor of the Thorobred
News, the editor of the Thorobred Yearbook, two student staff members (other
than the editors of the yearbook and the newspaper), and the following exofficio
[sic] members--Vice President for Student Affairs, Director of Student Life,
President of Student Government Association, and the Student Publications
Advisor. Except for those who are exofficio [sic], all members and the
chairperson are appointed by the President of the University for a term of one
(1) year. Appointments are made during the spring semester for the succeeding
year.

The
Student Publications Board shall . . . [s]et qualifications for and (upon
nomination by the Student Publications Advisor), appoint the editor of each
publication who shall serve for a one-year term, unless reappointed or removed
by the Board for cause . . . . In setting qualifications for the editors of the
newspaper and yearbook, the Board shall include a sufficiently high academic
average or the successful completion of a basic journalism course, or both.

10. At the time of
the events giving rise to the instant case, there was no publications policy
written specifically for the yearbook. Although the parties included a draft of
such a policy in the Joint Appendix, they agree that the draft has no relevance
to this case because it was produced after the events at issue.

Since
the Thorobred News is not an "official" organ of the University, the
Student Publication[s] Board shall cause to be inserted in the masthead a
standing and distinct disclaimer indicating that the views expressed are not
necessarily those of the University, but rather are those of the named student
author, editor or board of editors.

In
subsidizing the Thorobred News through the Student Publications Board, the
University expects the newspaper to maintain at least these two standards of
quality control:

1.
Report accurately and fairly newsworthy campus events; and

2.
Pursue important news events to make sure they are reported and commented upon
on the editorial pages with comprehension and full understanding of the facts.

13. Cullen's tenure
as publications advisor to the yearbook included the entire period at issue in
this case (from January 1992 to November 1994). Cullen resigned from KSU in July
1995. See Cullen v. Gibson, No. 96-6116, 1997 WL 547932 (6th
Cir. Sept.4,1997).

14. The handbook
further states that although the yearbook is "subsidized by the University,
it is the intent that [it] shall be free of censorship as prevailing law
dictates." Although we acknowledge that this freedom from censorship begs
the question of what, precisely, prevailing law dictates, we find it hard to
fathom that KSU would have included such language in its student publications
policy if it contemplated confiscating and withholding distribution of
publications with which it disagreed.

15. We note that
the class in this case turned out to include at most three students--Coffer and
the two yearbook staff members who briefly assisted her--and perhaps includes as
few as one (Coffer). The small number of students who ended up working on the
yearbook has no bearing on our finding that the yearbook constitutes a limited
public forum. Our focus is on whether the university intended to create a
limited public forum in the yearbook. The particular events in this
case--including the facts that a small number of students joined the yearbook
staff and that two students left it--transpired long after the university
expressed its intent to create a limited public forum for the student yearbook
editors, whomever they might turn out to be. We further note that although
Kincaid is not part of the class of student speakers who worked on the yearbook,
the First Amendment protects his right to read The Thorobred once the
university has opened it up as a forum for speech. See Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96
S.Ct. 1817, 48 L.Ed.2d 346 (1975) ("[W]here a speaker exists . . . the
protection afforded is to the communication, to its source and to its recipients
both." (footnote omitted)).

17. Coffer
testified that she included pictures of current events and celebrities because
"those were some of the major people and . . . major events that were
happening during that time."

18. Cullen also
indicated that the 1992-94 yearbook was not materially different in quality from
other yearbooks: "the things that were said about the [1992-94] yearbook,
this particular book that was confiscated, is [sic] nothing new or unique to any
other yearbook. They all have problems."

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